I frequently receive calls from potential clients seeking to protect their brand or a writing, but unsure whether they need to file a trademark application or obtain a copyright registration.
What is the difference between trademark and copyright law?
In fact, they are distinct from one another in several different ways.
In a nutshell, a trademark is a word, phrase, symbol or design that is associated with your goods or services, while a copyright is a form of protection for an original work of authorship.
If you have any questions or need help registering your trademark or copyright, please call (832) 485-3580 or send us an online message.
What Is a Trademark?
A trademark is a word, name, symbol or device used to identify your goods and services. In most cases this representation is visual—think of McDonald’s Golden Arches, for example, or the KFC slogan “It’s finger lickin’ good.”
A trademark, however, can also be a sound or even a scent.
You may acquire “common law trademark” protection through your use of a trademark in commerce. However, common law rights are limited, typically only to the specific geographic location of its use in commerce. You can obtain more expansive rights by obtaining a state registration, or better yet, a federal registration.
A federal registration provides you with the strongest protection.
What is a Copyright?
A copyright protects creative works such as novels, paintings, photographs, websites, and even computer software source code.
A “copyright” attaches to a work the moment it is affixed in a tangible medium. You must register your copyright with the US Copyright Office to enforce your rights in a federal court.
Trademark vs. Copyright: A Summary of the Major Differences
Following are some of the primary legal differences between trademarks and copyrights:
- Trademark law protects your brand that distinguishes your products and services from others. A copyright protects an original work of authorship, whether or not it represents a particular business or product.
- Affixing a work in a tangible medium automatically generates a copyright, while actual use (or filing an “intent to use” application) in commerce generates rights under trademark law.
- A trademark cannot be “confusingly similar” to a prior trademark, while a copyrighted work must be “original.”
- A trademark endures as long as you continue to use it in commerce and file renewals as required under law, while a copyright expires after a set period (typically the life of the author plus 70 years).
Although you can register both a trademark and a copyright at the federal level, the registration process is different for each one.
The process of generating, registering, and protecting trademarks and copyrights can be complex.
The following are some of the most common pitfalls:
- Failing to perform a trademark search to make sure that your mark is not confusingly similar to another mark.
- Failing to properly use a trademark.
- Failing to monitor the market to make sure someone else is not infringing your trademark or copyright.
- Failing to properly identify your registered trademark or copyright.
When it comes to protecting your business’s intellectual property rights, it is critical that you get it right the first time around.
Contact The Polasek Law Firm Today
For a free consultation, contact an experienced intellectual property attorney at The Polasek Law Firm by calling (832) 485-3580 or by contacting us online.